M’Riungi & 3 others v Republic (Criminal Appeal 134, 135, 136 & 137 of 1982) [1983] KECA 34 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed four death sentences for robbery with violence, ruling that one accused's confession can be used against their co-accused.
What this practically means
#Executive summary
#Key legal issues
#Second appeals and findings of fact
Whether the appellants were recognised rather than merely identified was a question of fact on which the two lower courts made concurrent findings; the Court of Appeal will not interfere.
Gitonga knew the first three appellants and had ample opportunity, with favourable lighting, to recognise them at the scene. The trial magistrate saw and heard the witnesses and the first appellate court upheld those findings. On a second appeal limited to law, the court declined to treat questions of recognition and credibility as issues of law, adopting Martin v Glyneed Distributors Ltd.
Use of a co-accused's repudiated confession
Repudiated confessions admitted after a trial within a trial and corroborated could properly be taken into account against both their makers and co-accused under section 32(1) of the Evidence Act.
Stephen's confession was amply corroborated by Gitonga's recognition of him at the scene and by Mugambi's confession. The confessions of Stephen and Mugambi each implicated Geoffrey and were admitted after a trial within a trial. Section 32(1) of the Evidence Act (cap 80) permits a confession to be taken into account against a co-accused.
Nature of sufficient corroboration
Corroboration of a repudiated confession or accomplice-type evidence need only be independent testimony, which may be circumstantial, connecting the accused with the crime.
Following R v Baskerville as applied in R v Beck, the court held that Mugambi's wife's testimony and the recovery in his house of a substantial proportion of the stolen goods within a day of the robbery was independent evidence confirming both the commission of the offence and his part in it.
Jurisdiction of a senior resident magistrate to try a capital offence and impose death
Section 6 of the Criminal Law (Amendment) Act (No 3 of 1969) empowering senior resident and resident magistrates to try robbery under section 296 and pass any lawful sentence was not ultra vires the Constitution.
Section 65(1) of the Constitution permits Parliament to establish subordinate courts with such jurisdiction as may be conferred by law, and section 60(1) does not conflict with this. Unlike the Jamaican Gun Court in Minds v The Queen, Parliament did not create a new court or transfer judicial power to the executive. The death penalty itself is saved by section 74(2) of the Constitution.
Recognition versus identification
The case was one of recognition, not identification of strangers, and the circumstances for positive recognition were favourable.
Gitonga knew the first three appellants before the robbery; the scene was lit by a hurricane lamp and torches; Stephen sat on Gitonga's chest and stomach and cut him. Possession of recently stolen goods and identified items found in the appellants' houses supplied independent confirmatory evidence.
Legal principles established
#- On a second appeal confined to matters of law, an appellate court is bound by concurrent findings of fact of the lower courts unless no reasonable tribunal could have reached them.
- Under section 32(1) of the Evidence Act (cap 80), a confession by an accused is admissible against a co-accused.
- Corroboration need only be independent circumstantial evidence connecting the accused with the crime.
- Parliament may, under section 65(1) of the Constitution, confer on subordinate courts by ordinary law jurisdiction to try robbery with violence and to pass sentence of death, without offending the constitutional provisions on the High Court.
- The death penalty for robbery with violence is saved by section 74(2) of the Constitution as a punishment lawful in Kenya on December 11, 1963.
Court orders
#- 1.All four appeals dismissed
- On appeal from
- High Court of Kenya
- Not specified in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal on questions of law under the Criminal Procedure Code (provision not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’Riungi & 3 others v Republic (Criminal Appeal 134, 135, 136 & 137 of 1982) [1983] KECA 34 (KLR)", Case Analysis (1983). Second Appeals from conviction for robbery with violence (High Court, Meru - not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/34/eng@1983-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.